Unit 1: What is Property, and why protect it?
I.
II.
III.
Why recognize Property
a. 5 Reasons to Protect Property
i. First Possession – First come first serve
ii. Encourage Labor
1. Encouraging development
2. People are more likely to put productive work into something they get
to own
iii. Economic Prosperity
1. Chance at wealth via landownership
2. Benefits all of society because the work is paid for and wealth is shared
iv. Independence/Democracy
1. Owning property gives you a stake in society
2. The more you have at stake the more you care
3. Provides economic security necessary for individual to make political
decisions that serve the common good
v. Personal Identity
1. Sense of identity
2. Becomes an extention of oneself
3. Personally may value something higher than market value
b. Capture of new property
i. Pierson v. Post
c. Property as theft
d. Creation of new property
i. White v. Samsung
Property to a lawyer is not a thing, but a set of rights protected by the state
Property as a bundle of rights
a. The right to transfer
i. Johnson v. McIntosh
ii. Moore v. Regents of the University of CA
b. The right to exclude
i. The most fundamental of bundle of rights
ii. Trespass
1. Privledges: Consent and emergency
2. Strict liability tort
3. Not a defense to say you didn’t do any damage
iii. Jacque v. Steenberg Homes, Inc.
iv. Hinman v. Pacific Air Transport
v. State v. Shack
c. The right to use
i. Private nuisance: one neighbor suing another, claiming that neighbor’s use of
land is interfering with their use
ii. Spite fences – owner’s right to use land does not extend to building a useless
structure for the sole purpose of injuring neighbor
iii. Sundower, Inc. v. King
iv. Prah v. Maretti
d. The right to destroy
i. The law rarely intervenes to protect destruction, but concern arises when an
owner seeks to destroy property that has substantial value to society
ii. Eyerman v. Merccantile Trust Co.
e. NOTES:
i. Can be split and assigned to different people
ii. Rights change over time
iii. None of the rights are absolute
iv. A “home” is the height of property rights, absent owners have fewer rights
Unit 2: Acquiring Real Property
I.
Adverse Possession
a. Justifications:
i. Preventing frivolous claims
ii. Correcting title defects – protects from defects that could take land from the
people who are using it, and have been using it
iii. Encouraging development – encourages owner to use land or let it be possessed
iv. Protecting personhood – what you have used for a long time should be yours
b. Elements of Adverse Possession
i. Actual Possession – must physically use the land in the same manner the
owner would given its character, location, and nature.
1. Constructive Possession – having the power and intention to have and
control property but without direct control or actual presence upon it.
(When is this useful or important?)
ii. Exclusive Possession – possession cannot be shared with owner or general
public
1. Sometimes allows for occasional and casual use by third party
iii. Open and Notorious Possession – possession must be visible and obvious that
a reasonable owner would notice it
1. It may be relevant how much of the land the adverse possessor is
using
iv. “adverse and hostile” Possession – cannot be authorized by owner to use the
land
1. Most contested requirement
2. Some states require “claim of right”
3. Sometimes “bad faith” is required, sometimes “good faith”
v. Continuous Possession (for the statutory period) – must be as continuous as a
reasonable owner’s would be for the period of time specified by state statute
vi. Gurwit v. Kannatzer
vii. Van Valkenburgh v. Lutz
viii. Land must only be used as a “reasonable owner” would use it.
II.
ix. “Quiet Title” – an action to settle a potential dispute over the ownership of
property
1. 3 elements, depending on the state: Petitioner must show…
a. An interest in specific property
b. That title to the property is affected by a claim by the
defendant, and
c. That the claim, although facially valid, is invalid or
unenforceable
2. If claim relies on adverse possession, claimant must show all the
elements are met
c. State of Mind
i. Bad faith required (tiny minority of jurisdictions take this approach) –
encourages productive use of land, makes adverse possession rare. Might
encourage “land pirates,” makes adverse possession useless for curing title
defects, etc
ii. Good faith required – must mistakenly believe the land is yours
iii. Irrelevant (majority position) – here , adverse and hostile just means you cannot
have the owner’s permission
1. Article suggest that judges actually do look at state of mind even when
they say they don’t – they do this by manipulating the other
requirements to be more strict so that they can or cannot give you the
land based on their opinions of your “faith” in regards to the land.
iv. Policy issues:
1. Intent is hard to read
2. Bad faith doesn’t serve any purposes of adverse possession
a. Limits adverse possession’s ability to clear up title defects,
prevent frivolous litigation, or protect personhodd
3. Intent has to be argued from years ago
v. Fulkerson v. Van Buren
vi. Tioga Coal Co. v. Supermarkets General Corp
d. Mechanics
i. Tacking – adding more adverse passion claims to each other to reach the
statute. Requires privity – a relationship between the 2 possessors. First person
must in some way transfer their possession
1. All adverse possession requirements must be met for the entire period
of the statute
ii. Howard v. Kunto
Real Estate Sales
a. Steps
i. Purchase contract: the paties negotiate and sign a written purchase contract,
prepare to consummate the transaction
ii. Executory period: the time between purchase contract, and before closing
(reason for this is to give incentive to both parties to incur the necessary costs
for closing with promise from otherside)
1.
2.
3.
4.
5.
Seller’s title is examined
Condition of the property is evaluated
The buyer obtains financing (from bank or other lender)
An escrow is opened to consummate transaction
Documents are prepared
a. Deed
b. Mortgage
c. Promissory Note
d. Escrow Instructions
iii. Closing: the contract is fully performed
1. Buyer pays the purchase price
2. Lender advances the loan funds, and
3. Seller transfers title
iv. Title protection: the buyer protects her title through title covenant, a title
opinion from search of public land records, and/or title insurance
b. Statute of Frauds
i. For sale of real property, contract must meet requirements
1. Essential terms: parties, price, and property description must be in
writing
2. Writing: formal or informal
3. Signature: must be signed by the party sought to be bound
ii. 2 exceptions to Statute of Frauds
1. Part Performance – some combination of the following (depending on
jurisdiction)
a. Possession
b. Pay part of purchase price
c. Make improvements
2. Equitable Estoppel
a. One party acts to his detriment in reasonable reliance on
another’s oral promise
b. Serious injury would result if enforcement is refused
iii. Hickey v. Green
c. Marketable title
i. Implied default term in every real estate purchase contract that the title is
marketable
1. Can contract around default by giving record of easement or other
encumbrance on deed (this is because otherwise some title’s would
never be marketable)
ii. Unmarketable title, if:
1. Seller’s property interest is less than the one she purports to sell
a. Could mean less land or
b. Less title (seller purports fee simple, but only owns life estate)
2. Seller’s title is subject to an encumbrance
a. Generally referring to private encumbrances (easements,
restrictive covenants, things usually recorded on the deed of the
property)
b. Public encumbrances are not considered (like land use
regulations, zoning laws, etc
c. Should be known through proper record search
d. Violation of zoning laws
i. Not violation of housing code (simply a defect)
3. There is reasonable doubt about #s 1 or 2
iii. Promise is that seller will deliver marketable title at closing
1. If discovered before closing, seller has until closing to fix it
2. If discovered shortly before closing seller has “reasonable amount of
time” to remedy
a. Unless contract says “time is of the essence”
3. Buyer can rescind if not remedied
iv. Lohmeyer v. Bower
d. Equitable Conversion (Contract around this!)
i. 3 approaches
1. Seller bares risk during executory period
2. Buyer bares risk during executory period
3. Party entitled to possession bares risk during executory period
ii. Brush Grocery Kart, Inc v. Sure Fine Market, Inc
e. Remedies for Breach
i. Giannini v. First Nat’l Bank of Des Plaines
f. Duty to disclose
i. “Caveat emptor” (buyer beware)
1. Older doctrine that buyers were responsible for knowing what they
were buying, not used very often anymore
ii. If duty is applicable, generally:
1. Owner knows about defect that
2. Materially affects property value and
3. Was not known to or readily discoverable by the buyer
4. There is a fiduciary duty to disclose
iii. Rescission is allowed if seller did not disclose something in this area
iv. Stambovsky v. Ackley
v. Strawn v. Canuso
g. The Deed
i. Types of deeds
1. General warranty deed: grantor warrants title against all defects,
whether they arose before or after he obtained title
a. Seller assumes risk
2. Special Warranty Deed: grantor warrants title against all defects that
arose after he obtained the title
a. Risk is split
3. Statutory Warranty – the state decides
4. Quitclaim deed: grantor makes no warranties about title, grantee
receives only was the grantor has, if anything
a. Can’t sure for bad title (except if by fraud)
b. Buyer assumes risk
ii. Doctrine of Merger: sale contract merges into the deed at closing
1. Cannot sue on sale contract after closing
2. Doesn’t apply to all covenants in sale contract (eg covenant to improve
or repair land or take over mortgage
3. Covenant to provide marketable title always merges (this is the core of
merger doctrine)
a. Cannot be sued after closing for bad title
b. Seller promised to give certain title in sale contract, but buyer
accepted different kind of title at closing,
i. Buyer implicitly agreed that title provided satisfied real
estate sale contract
iii. Conveying the deed
1. Finalizes the transfer of property
2. Considered “Delivered” only when
a. Intent to convey property
b. No ability to rescind
c. “present intent to transfer real estate”
3. Rosengrant v. Rosengrant
4. Vasquez v. Vasquez
h. Mortgages
i. Special kind of loan that allows the bank to recover house if you don’t pay, and
prevents the house from being calculated as part of your estate if you declare
bankruptcy
ii. Foreclosure – kind of foreclosure required depends on state
1. Judicial Forclosure: Mortgage lacks the “power of sale” clause
a. Lender must take the defaulting borrower to court
b. If the court confirms that the debt is in default, an auction is
held for the sale of the property in order to acquire funds to
repay the lender
2. Nonjudicial foreclosure: Mortgage contains the “power of sale” clause
a. Debtor is given a notice of default and informed of intent to sell
the real property (done in form prescribed by state statute)
iii. Lenders prefer non-judicial foreclosure because it is quicker and less expensive
iv. Borrowers consent to non-judicial because overall it lowers their costs and
interest rates because banks have to pay less for non-judicial so they can
provide lower interest rate
v. Wansley v. First Nat’l Bank of Vickburg
vi. Commonwealth v. Fremont Investment & Loan
i. Title Covenants – extra assurity that title is good
i. Present covenants: Breached, if at all, at the moment the deed is delivered
(closing)
1. Covenant of seisin: a promise that the grantor owns the estate he
purports to convey
a. This covenant is breached if the grantor purports to convey a
fee simple but only owns a life estate
2. Covenant of right to convey: a promise that the grantor has the right to
convey title
a. This covenant is breached if the grantor is a trustee who lacks
the authority to transfer title to the trust property
3. Covenant against encumbrances: a promise that there are no
encumbrances on the title, other than those expressly listed in the deed
a. This covenant is breached if there is a prior mortgage on the
property
ii. Future covenants: Breached when the future covenant is violated
1. Covenant of warranty: a promise that the grantor will defend the
grantee against any claim of superior title
a. If a third party holds better title than the grantee does, the
grantor must defend the grantee’s title
b. If you get involved in litigation and seller gave general warranty
deed, then seller must pay litigation costs to fight in court (same
with covenant of further assurances)
2. Covenant of quiet enjoyment: a promise that the grantee’s possession
of the property will not be disturbed by anyone holding superior title
a. Covenant is breached if the grantee is evicted because of a
defect in her title
3. Covenant of further assurances (practically never used anymore): a
promise that the grantor will take all future steps reasonably necessary
to cure title defects that existed at closing
iii. Brown v. Lober
j. Searching Title
i. Grantor-grantee index: organizes by the names of the parties to the transaction
1. Normal title search: Search backward in the chain of title by grantor
until that grantor is the grantee, repeat until you reach the required
statutory period (30 or 40 years)
2. Extended title search: Find every grantor in your chain, and you examine
every deed where they were the grantor
ii. Tract index: organizes by the parcel involved
1. Much easier!
iii. Luthi v. Evans
k. Recording Acts
i. Race
1. First in time is right (whoever records first)
ii. Notice
1. Subsequent bona fide purchaser wins
2. Encourages recording
iii. Race-Notice
1. Subsequent bona fide purchaser who records first wins
iv. Shelter Rule: Bona fide purchaser is allowed to transfer his protection to a later
grantee, even if grantee knows of earlier conveyance (so bona fide can sell to
non bona fide and that non bona fide is sill protected
v. Zimmer rule (stupid, according to Hurst) – subsequent buyers recording cannot
be valud unless previous recording is valud
1. Would result in nonconstructive notice, called “wild deed”
vi. Messersmith v. Smith
l. Chain of Title
i. Problems
1. Deed too early – interest is recorded by buyer before seller. A-B, B
doesn’t record, B->C, C records then B records
2. Deed too late – Interest is recorded by seller after buyer. A-B, B doesn’t
record, B->C, C records then B records
3. Wild Deed – deed that can’t be found, but is validly recorded. Usually
previous deed was not recorded. A -> B, B doesn’t record, B -> C, C
records, C’s deed is wild
4. Deed from a common grantor – same grantor divided land but only
recorded under one title the easement, it is not visible now on the other
title’s title search
5. Effect is making it so someone cannot find the document, so it does not
give notice and does not count as recording first
ii. Board of Education of Minneapolis v. Hughes
m. Notice
i. Actual Notice: knowledge of a prior interest
ii. Constructive Notice:
1. Record notice: notice of prior interest would be discovered by a
standard search of public land records
2. Inquiry Notice: notice of prior interest would be discovered by
investigating suspicious circumstances
a. Not that you did know, but that you should have known
iii. A deed being valud, and being effectively recorded are two different things
iv. Deed must have enough detail to create effective (constructive) notice
1. Mother Hubbard clause (an all my other property in this county) – not
specific enough to provide constructive notice
v. Raub v. General Income Sponsers of Iowa, Inc
n. Title Insurance
i. Creature of contract law, not property law
ii. Covers different things than deed covenants
1. May not cover seisin or other things like that
iii. Terminology:
1. Exclusions: listing specific items that are excluded from coverage for all
properties
2. Conditions: specifying procedural requirements, such as the time and
matter for making claims
iv. Basics:
1. If the buyer suffers loss from a title defect that existed on the effective
date of the policy, he receives compensation from the title company
2. Covers certain off-record defects (forged deed in the chain of title)
v. Title assurances
1. 3 ways to be sure your title is good
a. Title covenants
b. Title Opinion based on search of public records
c. Title Insurance
vi. Riordan v. Lawers title Insurance Corp
o. The purpose of real estate records
Unit 3: Dividing Ownership of Real Property
I.
II.
Dividing Ownership in time: The freehold estates and Future Interests
a. The fee simple (you own it all forever)
i. Alienable, divisible, descendible
ii. Most valuable and marketable
iii. Duration is potentially infinite
iv. Previously required words of limitation “and his heirs”
v. Cole v. Steinlauf
Freehold estates and future Interests
a. Life Estate
i. Measured by the lifetime of a particular person, when that person dies the
estate ends
ii. Followed by either
1. Remainder (in third party); or
2. Reversion (in grantor)
iii. Waste doctrine
1. Permissive waste – failure to upkeep
2. Voluntary waste – intentionally causing damage
3. Ameliorative waste – Even good changes are waste (not the law in most
places)
4. Courts only care about economic issues when it comes to waste
doctrine.
b. Fee Tail – interest is only possessory during life
i. Creatd by a conveyance named to a person and “the heirs of her body”
ii. O conveys to B in fee tail. O retains a reversion, which becomes possessory if
B’s line of lineal descendants expires
iii. White v. Brown
iv. Woodrick v. Wood
c. Fee Simple Determinable
i. Fee simple defeasible – continues until some future occurrence
1. Transfers back to owner automatically
2. Measure of time
ii. Fee simple subject to condition subsequent – continues until some future
occurrence
1. Transfers back ONLY if transferor claims it
2. Conditional
iii. Fee simple subject to executory limitations – ownerships transfers to a third
party if future even occurs
1. Transfer is automatic
iv. All property must add up to a fee simple
v. Mahrenholz v. County Board of School Trustees of Lawrence county
vi. Metropolitan Park District v. Unknown Heirs of Rigney
d. Future Interests (an interest that may become possessory in the future)
i. Retained by transferor
1. Reversion (anything left over)
2. Possiblity of reverter (FSD)
3. Right of entry (Follows FSStaCS)
ii. Created in transferee
1. Remainder – happens immediately on conclusion of the other’s estate,
does not divest
a. Indefeasibly vested remainder
i. Created in an ascertainable person; and
ii. Not subject to a condition precedent
b. Vested remainder subject to divestment – no condition has to
be satisfied before it becomes possessory but there is some
condition under which it might be taken away before it
becomes possessory
c. Vested remainder subject to open – property conveyed to a
class that is still open, people may still be added
d. Contingent remainder – not vested, either held by nonascertainable people, or a condition that must be satisfied
2. Executory interest – divests someone else’s interest in the land
a. Usually to a third party; or
b. “to A 15 years from now”
c. Automatically transfers when the condition is satisfied
e. Rules furthering marketablility
i. The Rule in Shelly’s Case
ii. The doctrine of worthier title
iii. The doctrine of destructibility of contingent remainders
f. The rule against perpetuities – “no interest is good unless it must vest, if at all, no later
than 21 years after some life in being at the creation of the interest.
i. “is good” – is valid and has been conveyed
1. If it violates the RAP, then it is never good.
ii. “vest” – when it becomes certain that it will become possessory
III.
1. Ascertainable person
2. No conditions present
3. Does not necessarily mean “becomes possessory”
iii. “life in being” – anyone identifiable at the time of conveyance (or death if in the
will) named or described in the will
1. Not a corporation
iv. ROP applies to:
1. Vested remainder subject to open (classes/groups of people)
2. Contingent remainder
3. Executory interests
v. Does not apply to any interest retained by grantor
vi. Is there anyway that in 21 years it could still be uncertain? Then it would be void
1. Must either VEST or permanently FAIL to vest
vii. Algorithm
1. Identify interests subject to RAP
a. Vested remainder subject to open
b. Contingent remainder
c. Executory Interests
2. List lives in being
3. Look for relevant children
4. Kill everyone in step #2
5. Add 21 years
6. Is there any logical way interest could vest after this point?
viii. Time language = conveyor has right to re-entry
ix. Conditional Language = Fee Simple Subject to an Executory Limitation/Fee
Simple Absolute
x. Modern reforms on RAP
1. Wait and see approach – wait 21 years from the life in being and see if it
has vested or forever failed to vest yet. (in exam – use classic approach!)
2. Cy prey “as near” – as near as possible, instead of wiping out hirer
interest, court will rewrite to give closest effect as possible as conveyor
intended.
3. Uniform Statutory Rule Against Perpetuities: valid if it either satisfies
traditional RAP or if it vests or not within 90 years
xi. Jee v. Audley
Concurrent ownership and marital property
a. Concurrent ownership generally
i. Tenancy in common (to A and B as tenants in common) – multiple people own
the same property and they all have all the rights associated with it.
ii. Joint tenancy (to A and B as joint tenants with right of survivorship) – same as in
common, but includes right of survivorship
1. 4 unities – must all be met for joint tenancy, breaking one severs the
entire agreement
a. Time – each party must receive deed at the same time
b. Title – each party must acquire title by the same instrument
(the same deed says “goes to A, B and C”)
c. Interest – each party must have same shares in the estate, A
cannot receive 1/3 while B receives 2/3
d. Possession – each party must have equal rights to possess, use,
and enjoy entire property
2. Right of survivorship, the rights of whoever dies first go to whoever is
still living
iii. Tenancy by entirety (to A and B as husband and wife as tenants by the entirety)
– same as joint but includes idea that no one can sell their ownership without
the permission of others (including to creditors, creditors cannot come after a
property on behalf of one person when it is owned in entirety)
1. Can only occur between married couples.
2. Can only be ended by death, divorce, or agreement by both spouses
3. Includes right of survivorship
iv. These are not customizable, court will not look at intent of parties but instead
place it in one of the 3 categories.
1. Default is tenancy in common
v. In all categories, everyone with any ownership has complete rights to the whole
land
vi. James v. Taylor
vii. Tenhet v. Boswell
b. Dispute settlement for concurrent ownership
i. Partition
1. Partition in kind – the land is physically divided up (this is default option
see Ark Land co. v. Caudill)
2. Partition in sale – the land is sold and the value is divided pro rata
a. For this to happen
i. Partition in kind must not be conveniently possible
ii. At least one person must be better off
iii. No persons can be worse off
iv. Economic interests are not everything
ii. Action in waste – suit can be brought to prevent waste by one party, recall
waste doctrine
iii. Ouster – one tenant being ousted and unable to use the property, has the right
to sue (results in the payment of “rent”).
iv. NOT resolved by voting between owners
v. Contract can be used to make agreements on how the land will be used,
including adding the right to vote over use.
c. Rights and duties of cotenants
i. Ark Land Co. v. Harper
ii. Esteves v. Esteves
d. Marital Property Generally
i. Tenancy by the entirety (see above)
IV.
ii. Common law: woman lost the ability to own, manage, and dispose of her
property upon marriage.
iii. Separate property:
1. During marriage: Property is separately owned by the spouse who
acquires it
a. Individual owns earning during marriage and all property
purchase from those earnings
2. Divorce: Most separate property state require equitable distribution of
the property owned by each spouse
3. Death: Most states offer the surviving spouse a forced share (or elective
share) of the decedent’s estate
a. Choice: (1) take under will or (2) receive defined portion of
estate (usually 1/2 or 1/3)
iv. Community property
1. During marriage: All earnings and all assets acquired by those earning
are owned by both spouses equally
a. No right of survivorship
2. Divorce: All community property is divided between the spouses
3. Death: The decedent may devise her half of the community property
and all her separate property as she devises, other half of community
property belongs to surviving spouse
v. Sawada v. Endo
e. Defining marital Property
i. Guy v. Guy
Landlord-Tenant Law
a. Nonfreehold estates
i. 4 kinds
1. Term of years – or weeks or months, specififed amount of time
2. Period tenancy 3. Tenancy at will – as long as you want
4. Tenancy at sufferance – overstaying your lease (mostly done away with)
ii. Kajo Church Square, Inc. v. Walker
b. Leasehold Estates
1. Term Lease 
a. A lease with a fixed duration
b. Terminate automatically and without notice
c. Restrictions:
i. Statute of Frauds applies to all land purchases
ii. 99 year limit on lease term (avoids the “dead hand”
problem)
2. Periodic Tenancy 
a. Renews itself at the end of the period established by the lease
b. Bound again if not terminated
i. Year to year requires six month notice; when shorter
than a year, the notice corresponds to the period of
tenancy
3. Tenancy at Will 
a. No fixed duration nor periodicity
b. Can be terminated at any time by landlord or tenant w/out prior
notice to the other
c. Upheld when it is uncertain what a lease is or what it says
4. Tenancy at Sufferance 
a. A tenant wrongfully continues in possession of the property
after his right to be there has ended
b. Landlord has the choice to treat the holdover tenant as a
trespasser and sue to evict OR as a tenant at sufferance who is
responsible for paying rent
5. **Just because the tenant is not paying rent, doesn’t mean that the
landlord can evict the tenant – the landlord has to take the issue to
court
c. Assignments and sublease: Basics
i. Privity of contract – you can sue based on anything in the contract
ii. Privity of estate – fewer duties, can sue based on anything in the contract that
touches or concerns the property
iii. Sublease (line)
1. L and T are in privity of contract, L can sue T and T can sue L
2. T and S are in privity of contract, S can sue T and T can sue S
3. L and S have no contract, and cannot see each other in court
4. Tenant retains a right to re-enter premises
iv. Assignment (triangle)
1. L and T are in privity of contract, they can sue each other
2. T and A are in privity of contract, they can sue each other
3. L and A are in privity of estate, they can sue each other
4. Tenants entire interest is transferred
v. Just using the language “tenant” or “assignment” is not enough, wording
doesn’t matter, arrangement of the contract does
vi. Saying “Tenant is still on the hook for rent” does not mean it isn’t an assignment
vii. Consent clauses
1. Common law default is that T can alienate their ownership unless
contract says otherwise
2. Sole discretion clause – LL may refuse sublease for any reason
3. Reasonable Clause – LL may only refuse for commercially reasonable
reasons
a. New tenant has bad credit
b. History of destroying property
c. etc
4. No standard in lease “silent consent clause” – court will decide if there
is a dispute, court usually favors free alienability, so you better have a
good reason to refuse
a. Don’t use this. Make a decision and make it clear.
b. None commercially reasonable reasons
i. Moral objections (religious university ended up a leasor
to Planned Parenthood)
ii. Higher rent extortion
d.
e.
f.
g.
h.
viii. Ernst v. Conditt
ix. Kendall v. Ernest Pestana, Inc
Abandonment – occurs when tenant vacates the leased property w/o justification and
without any present intention of returning and he defaults in the payment of the rent
i. Landlord remedies
1. Sue for all rent
2. Terminate the lease: treat as implied offer of surrender and terminate
3. Mitigate damages and sue for rent (generally now required)
Security Deposits
i. Sinner v. Kridel
Eviction
i. Generally if the landlord has a right to the property, he can evict. Exceptions are
retaliatory evictions and self-help evictions
ii. Retaliatory eviction
1. Goal is to protect people who are claiming other rights designed to
protect them
a. Health code violation
b. Etc
2. Proving retaliatory, tenant must have evidence of retaliation
a. Did you join a home owner’s association or report to a public
official?
b. Did you treat them the same as other tenants in the same
scenario
iii. Good cause eviction (certain states)
1. Can only evict for one of the statutory reasons
2. Policy arguments, favor tenant’s “personhood” interest over landlord’s
monetary interest.
iv. Hillview Associates v. Bloomquist
v. Aimco Properties, LLC v. Dziewisz
vi. Berg v. Wiley
Substandard housing
i. The Fair Housing Act
1. Can’t refuse rent or sale because of race, color, religion, sex, handicap,
familial status, or national origin
Constructive eviction
i. Tenant can leave if LL corrupts their right to quiet enjoyment, and stop paying
rent
ii. Remedy is inflexible
1. Rescission and damages
2. No way to stay and force performance
iii. Not common for residential properties
i.
1. Tenant has to abandon and residential tenants often don’t have the
means for that
2. IWH is easier to claim
iv. Fidelity Mutual Life Insurance Co. v. Kaminsky
v. JMB Properties Urban Co. v. Paolucci
Implied Warrant of Habitability
i. Standard:
1. Housing should be habitable and fit for living with no latent defects that
are vital to the life, health, and safety of the tenant
2. Only the code violations that substantially threaten health and safety
are actionable
ii. Cannot be contracted around, it is a given in every residential contract (in the
states where it applies, (most states))
iii. Remedy:
1. Usually order for LL to fix problem
2. Abatement of rent until problem is fixed
iv. Bad for economics (according to Hurst)
1. Increases costs to LL, fewer LLs want to get into the business, ultimately
provides less housing. Reduces desire for people to get into low income
housing
2. Effectively makes it illegal to rent for below a certain price (does this out
price some people from being able to have a house?)
v. Division of ownership usually comes down to $$, when you base decision on
what is best for the community at large it is actually bad for the economy
(railroads)
vi. Wade v. Jobe
vii. Teller v. McCoy
Unit 4: Land Use Regulation
Private land use regulations
I.
Easements, Real Covenants, and CICs
a. Definitions:
i. Easement: Right to use someone else’s land in a particular way
ii. Dominant Land: Land benefited by the easement
iii. Servient Land: Land that is burdened by the easement
iv. Dominant Owner: easement holder
v. Servient Owner: owner of servient tenement
vi. Appurtenant Easement – benefits the holder in her use of a specific parcel of
land, personal to the holder
vii. Easement in gross – not connected to the holder’s use of any particular land, it
is personal to the holder
viii. Affirmative easement – allows holder to perform an act on the servient land
ix. Negative easement – allows the holder to prevent the servient owner from
performing an act on the servient land
b. Express and implied easements
i. Calling it an easement doesn’t make it an easement.
ii. Easements are more permanent
iii. Licenses are revocable
iv. Express easement = written agreement
v. Implied easement
1. Requirements
a. Severance of title to land held in common ownership
b. An existing, apparent, and continuous use of one parcel for the
benefit of another at the time of severance
i. Use must be reasonably contemplated when the
easement was created
c. Reasonable necessity for that use
i. Usually means “alternative access or utilities cannot be
obtained without a substantial expenditure of money or
labor” – restatement
vi. Millbrook Hunt, Inc v. Smith
vii. Van Sandt v. Royster
c. Easements by necessity
i. Justifications
1. Implied intent of the parties
2. The public policy favoring the productive use of land
ii. Required elements:
1. Severance of title to land held in common ownership
2. Strict necessity for the easement at time of severance (majority
approach)
a. Can you get there without trespassing (by boat, or ice skating,
or anything?)
3. Restatement approach is not strict necessity but “necessity for
reasonably enjoyment of the land”
iii. Berge v. State of Vermont
d. Prescriptive Easements
i. Justifications: promotes efficient use of land by allowing access to parcels that
otherwise might remain idle
ii. Easement by adverse possession
iii. All adverse possession elements must be met EXCEPT exclusivity
1. Open and notorious
2. Adverse and hostile
3. Continuous
4. For Statutory Period
iv. Tacking may be used
v. O’Dell v. Stegall
e. Irrevocable License aka Easement by Estoppel
i. Justifications:
1. Fairness – it would be unjust to allow a landowner to revoke permission
after user has relied on it in good faith by substantially changing his
position
ii. Required elements:
1. Landowner allows another to use his land (creating a license)
2. The Licensee reasonably relies in good faith on the license, usually by
making physical improvements or by incurring significant costs; and
3. Licensor knows or reasonably should expect such reliance will occur
iii. Kienzle v. Myers
f. Interpreting easements
i. An easement is only for exactly what it says in writing
1. Updated technology counts as long as it is the same kind of technology
(horse and buggy -> car)
ii. Courts interpret easements in terms of their purpose, not in terms of their
burden on the servient track
1. Easement to access farmland is still viable when farmland is subdivide
for residential property, even though there is more use on the
easement.
iii. Most easements are created by contract, the contract will tell you what the
easement is for. Always go by the wording of the contract
iv. Marcus Cable Associates, LP v. Krohn
g. Terminating Easements
i. Release - If document is signed back to owner of servient tract easement ends
1. Real estate transaction – statute of frauds applies for written agreement
ii. Abandonment
1. Must show an intent to abandon easement
a. Non use; AND
b. Some action indicating intent to abandon or purpose
inconsistent with future existence of easement
iii. Condemnation of servient land
iv. Merger of properties – property
v. Misuse of Easement
vi. Estoppel – owner of servient tract relies on owner of easement’s promise that
the easement will be ended
vii. Prescription (adverse possession) – physically interfering with use of easement
for the statutory period
viii. Preseault v. United States
h. Negative Easements
i. Real Covenants – promise concerning the use of the land that benefits and burdens
original parties and their successors
i. Two sides
1. Burden: duty to perform the promise
2. Benefit: right to enforce the promise
ii. Elements
1. Compliance with statues of frauds: the covenant must be contained in a
document that satisfies the statute of frauds
2. Intent to bind successors: the original parties must intend to bind their
successors, usually in express language (“heirs and assigns”)
3. Touch and Concern: covenant must relate to the enjoyment,
occupation, or use of the property
a. Monetary obligation does not touch and concern
4. Notice: the successors must have notice of the covenant (actual, record,
or inquiry)
5. Horizontal privity: privity (relationship) between the original owners
a. Questions the kind of privity
i. Mutual interest: both parties have a mutual interest in
the land
1. Landlord/tenant
2. Co-tenants
3. Etc
ii. Successive Interest: Grantor/Grantee relationship
between original parties
iii. No requirement: an increasing number of states have
abandoned the requirement; this is modern trend
6. Vertical privity: occurs at transfer to next owner
a. Exists only if ALL rights are transferred, successor must receive
entire estate that the original party had
iii. Deep Water Brewing, LLC v. Fairway Resources Ltd.
j. Equitable Servitude – just like Real Covenants without privity requirement
i. Only injunctions can be served, no damages
ii. Must have clean hands
iii. Tulk v. Moxhay
k. Unreasonableness of CC&Rs
i. Definitions:
1. HOA: Home Owner’s Association
2. CIC: Common Interest Community
3. CC&R: Covenants, Conditions, & Restrictions
ii. CC&Rs: usually put in by developer
1. Not an ad hoc agreement between neighbors
2. Attempt to sell property at higher price
iii. Problems:
1. Intrusive
2. Changes need to be unanimous; any person can sue to enforce
3. Usually establish HOA to enforce or amend CC&Rs
a. Creates private government
b. Leads to corruption, discrimination, and general jerkiness
iv. Ways to get out of CC&Rs
1. Prove lack of notice
II.
2. Merger – buy up all the other properties
3. Condemnation – government buys the property then is exempt from
the CC&Rs and all future purchasers do not have the CC&Rs
4. Estoppel – prove unfair/untrustworthy dealings
5. Prescription – violates CC&Rs with adverse possession like requirements
(open and notorious, etc) for statutory period.
6. Release – the people to whom you are bound agree to release you
7. Abandonment
a. Has the purpose of the covenant been defeated?
b. How has this been enforced to others?
8. Changed circumstances
a. Are the benefits of the cc&r still being met?
b. Fink v. Miller
c. Vernon Township Fire Department
9. Unreasonableness
a. Narhstedt v. Lakeside Village Condominium Association, Inc.
l. Homeowners associations
i. Schaefer v. Eastman Community Association
ii. Fountain Valley Chateau Blanc Homewoners Association v. Department of
Veteran’s Affairs
Nuisance
a. Must show:
i. Intention: perpetrator must know he is causing harm, or be substantially certain
that harm would result from that activity
ii. Nontrespassory:
1. vibrations, noise, dust, smoke, etc
2. NOT physical entry onto land – like baseball or person
iii. Unreasonable:
1. Gravity of Harm test – if the gravity of harm outweighs the utility of the
actor’s conduct
2. Restatement approach
a. Social value of conduct
b. Suitability of conduct to character of locality
c. Impracticability of preventing or avoiding the invasion
3. Some combination of 1 and 2
iv. Substantial Interference – must be a real and applicable invasion of the
plaintiff’s interests
v. Use and enjoyment of the land – can’t just decrease the property value, must
affect actual use of the land
b. Remedies
i. Injunction – they must cease activity
ii. Damages
1. Continuing – keep suing and keep getting damages as long as nuisance
goes on ( a court enforced contract)
III.
2. Permanent – 1 lump sum to make up for all past, present, and future
damages
c. Boomer v. Atlantic Cement Co., Inc
d. Thomas v. Greve
Zoning
a. Noncomforming uses – prior uses are allowed to continue by common law (but you are
not allowed to expand or remodel or do major repairs), ways around this are
i. Amortization – the city uses a calculations to allow you to reach your maximum
benefit and then you must cease operations.
1. Most commonly used to eliminate uses that re views as particularly
objectionable
ii. Spot Zoning – requires:
1. Singles out a small parcel of land for different treatment
2. Primarily for the benefit of the private owner, rather than the public
3. In a manner inconsistent with the general plan for the community
4. Problem: easily leads to corruption
iii. Variances – special exception
1. When justice outweighs strict observance
iv. Under common law, non-conforming uses could be terminated if:
1. The structure was destroyed
2. The use was abandoned or discontinued
3. The use was a nuisance or the municipality acquired the property
through eminent domain
v. AVR, Inc v. City of St. Louis Park
b. Zoning amendments
i. Zoning ordinances can simply be amended – legislative decision
1. Courts hesitate to get involved
ii. Problems:
1. Threatens goal of comprehensive land use planning
2. Creates a heightened risk of governmental corruption
iii. Decision is valid unless it is “clearly arbitrary and unreasonable”
iv. Smith v. City of Little Rock
c. Variances – when justice outweighs strict observance
i. Not spot zoning, not legislative determination but judicial determination
ii. Must fit statutory factors
iii. Courts tend to refer to zoning board and not review zoning law
d. Conditional Use permits
e. New approaches
i. Detwiler v. zoning Hearing Board of Lower Salford Township
Public Land Use Regulations
I.
Zoning
a. Constitutionality of zoning
i. Not just one rule that zoning must comply with, lots. If it violates 1, it is invalid
ii. Due Process
1. Doctrines:
a. Rational basis test: is the regulation rationally relation to a
legitimate government interest
i. Health, safety, environmental concerns, economic
growth, property values, aesthetics
ii. Cannot be animus, can’t pass legislation against certain
people (students, races, handicapped, etc)
b. Deference: not for the court to figure out zoning ordinances,
cities know best. As long as we can imagine some plausible way
in which this passes the rational bases test, we will defer to the
city
2. Did the city’s powers allow it to zone
a. Preventing nuisance before it comes to court
iii. Free speech clause (another way to argue zoning laws)
1. Is the thing you are compelling a free speech
iv. Village of Euclid v. Ambler Realty Co.
b. Aesthetic Regulation
i. State ex rel. Stoyanoff v. Berkeley
ii. City of Ladue v. Gilleo
c. Family zoning
i. Does this stand up to “rational basis review”
1. Interest -> Legitimate -> Relationship (between interest and regulation)
ii. Over breath and under inclusiveness
1. This does not directly solve any of the problems they claim
2. Under inclusiveness: ordinance does not regulate conduct that
implicates the same government interest as the conduct it does
regulate
iii. Just because an ordinance is constitutional under the federal constitution
doesn’t mean it is under the state constitution
iv. Moore v. City of East Cleveland
v. Ames Rental Property Association v. City of Ames
d. RLUIPA (Religious Land Use and Institutionalized Persons Act)
i. Prohibits government from creating land use ordinances that restrict free
exercise clause
ii. General Rule:
1. Statutory provision
2. Must be compelling state interested served in the least restrictive
means
3. First step: threshold question: is there a substantial burden on religious
exercise
4. Then: identify government interest behind regulation
5. Then: ask whether the government interest meets the test
(“compelling” government interests (health and safety))
II.
6. Then: How close is the relationship between government interest and
land use regulation (must be “least restrictive means for achieving
government interest)
iii. Equal terms – does this religious assembly get treated like any other assembly?
Environmental law
a. Property and Ecology
i. Other people’s happiness depends on non-use of your land
ii. Just v. Marinette County
b. Public trust doctrine
i. Government holds the deed to the land, all citizens have right to use for
appropriate purposes
c. Wetlands
i. All navigable waters are part of the public trust
1. Sometimes that includes streams etc that feed into the navigable waters
ii. Clean Water Act prohibits pollution of national waters
1. National waters = all navigable waterways
2. Army Corps of Engineers is tasked with protecting waterways
3. Discharge of pollution includes moving things around or taking things
out and putting them back in a new form
4. Exception in statute for ordinary farming activities
a. They say it is not ordinary farming if you are altering the land to
prepare for new use
iii. National Audubon Society v. Superior Court
iv. Borden Ranch Partnership v. US Army Corps of engineers
d. Hazardous Wastes
i. CERCLA – allows for lots of people to be held liable for toxic dump sites
1. Including:
a. Current land owners (if they had “reason” to know about it)
b. People who owned the land when the waste was being dumped
c. Companies involved in actual dumping
d. Companies that produced the chemicals that were being
dumped
2. Exceptions:
a. 3rd party – if the release of toxic materials was due entirely to
the act or omission of some third party, D can get off
i. Has to be someone besides a contractor who you
contract with, that is your agent
b. Innocent buyer
i. Must acquire the land after any disposal
ii. Must have “no reason to know that any hazardous
substance” was disposed of at the property
1. Requires extensive pre-purchase investigation,
often including soil and groundwater tests
iii. Must fully cooperate with government officials
III.
IV.
c. Contractual Protection
i. Buyer requires seller to certify that no hazardous
substances are present on the land
ii. Seller is accountable for future cleanup costs that arise
under CERCLA or related statutes
3. Joint and several liability – intent is to make sure someone foots the bill,
cleanup has to be done
ii. United States v. Monsanto Co.
e. Endangered Species
i. Bans the “taking” of any species
ii. Interpreted to mean “harm”
1. Infers that harming their habitat is harm to the animal
iii. Babbit v. Sweet Home Chapter of Communities for a Greater Oregon
Eminent Domain – an understood power of government
a. Limits
i. Public Use
ii. Compensation
iii. State/statutory regulations
1. Make sure states are not acting ultra vires (beyond their powers)
according to their own state constitutions
b. Defining Public Use
i. Usually roads, schools, etc.
ii. Sometimes now defined as “public interest”
iii. Hawaii Housing Authority v. Midkiff
c. Scope of Public Use
i. “Rational basis review” – is this rationally related to a legitimate government
interest?
ii. Kelo v. New London
Regulatory takings
a. “Effective taking” – regulation restricts an owner’s rights so much that it becomes the
functional equivalent of a seizure
b. Traditional approach: if government regulated the use of property under the police
power to prevent harm to the public, no taking occurred
c. New approaches:
i. Diminution-in-value test: one way of determining whether police power have
been exceeded is the extent of the resulting diminution in value
1. Average reciprocity advantage: benefit = burden
ii. Penn Central factor test:
1. Economic impact of the regulation on claimant
2. To what extent has regulation interfered with distinct investmentbacked expectations
3. Character of governmental involvement
a. Physically occupying
b. Purpose of government action
d.
e.
f.
g.
h.
i.
iii. Authorizes permanent physical occupation of land
iv. Causes loss of all economically beneficial or productive use of land
Usually economic
Is it a taking at all?
Pennsylvania Coal v. Mahon
Penn Central Transportaition Co. v. City of New York
Loretto v. Teleprompter Manhattan CATV Corp
Lucas v. South Carolina Coastal Council